Teal v. . Templeton

62 S.E. 737, 149 N.C. 32, 1908 N.C. LEXIS 292

• Court: Supreme Court of North Carolina
• Decided: November 5, 1908
• Status: Published

Opinion

Clare, -O. J.

The objection to -jurisdiction was properly overruled. There being' no" written complaint, the “surd demanded” in the summons is the test. Both causes of action were for breach of contract and the total sum demanded was $200. The Justice therefore had jurisdiction. Cromer v. Marsha, 122 N. C., 563; McPhail v. Johnson, 115 N. C., 302; Rev., 1419, 1445.

Had it been doubtful as to the sum demanded, the remitter made it clear, even if it had been retroactive. McPhail v. Johnson, 115 N. C., 302, and cases there cited; Brantley v. Finch, 97 N. C., 91. But it is clear the plaintiff was suing for breach of contract and not for the $250 due for rent, if contract had- not been broken.

■ The defendant was not entitled to judgment for the counterclaim filed in the Justice’s court on the ground that no reply had been there filed, for the pleadings were oral and, besides, the trial in the Superior Court was de novo, and the Judge in his discretion allowed a reply to be filed. There was no ground for motion to nonsuit. Besides, the defendant waived fit by introducing evidence, and not renewing motion at the close of all evidence.

' - The exception that the contract was not in writing cannot -avail. A lease for three years -or less is not required to be in writing. The statute of. frauds was not pleaded. Besides, the defendant could not take the timber and refuse to pay for it. But if the statute of frauds were pleaded, it would not necessarily have affected the jurisdiction of Justice of the .Peace, for “title to land” was not drawn in controversy. •There was no recovery on this cause of action.

Both parties testified that it was agreed that the contract should, be reduced to writing, but failure to do so did not invalidate the contract. It only affected the mode of proving the contract. In fact, it was put' in writing, but the defendant •refused to sign it. No exception was taken on the trial to ¿proving value of the timber in excess of 22 1-2 cents per tree. Had this, been done, the Judge would doubtless have allowed •plaintiff to amend his allegation. .

No error.